Matt Gurney: How the new self-defence law can get you, or a mall cop, in trouble

Self-defence: How the new self-defence law can get you, or a mall cop, in trouble

Bill C-26, the Citizen’s Arrest and Self-defence Act, is in the House for third reading. The law would take the existing Criminal Code sections dealing with the rights of self-defence, defence of property and citizen’s arrest and compress them into much shorter, clearer sections. Canadians already have the right to all these things, but the regulations as found in the Criminal Code are complex and convoluted. Even if a citizen who defends themselves is eventually acquitted of a crime on the basis of self-defence, a long, drawn out legal proceeding adds further victimization to what was already likely a traumatic experience. Bill C-26, which seems set to pass with nearly unanimous support (Only Green party leader Elizabeth May opposes it) would help put the law back on the side of the lawful citizen.

But it is not without critics. Among them is Eric Gottardi, vice chair of the Canadian Bar Association’s National Criminal Justice Section. He supports the new self-defence provisions, but in February, testified before Parliament’s Standing Committee on Justice and Human Rights, and raised concerns that the new law, if passed, could put mall cops and security guards in added danger. But the issue is actually much bigger than that. Because, if true, the law puts every last person in the country in equal danger.

Speaking to the committee on Feb. 9, for the Bar Association, Mr. Gottardi testified that the new citizen’s arrest provisions, in the opinion of the Bar Association, “may encourage citizens who are untrained in arrests to risk their own personal harm and risk liability for wrongful arrests.” He noted that these arrests can be dangerous, as people are more likely to resist a citizen’s arrest than they are an arrest by a police officer. That’s a fair point — but presumably the person attempting to make a citizen’s arrest will have the ability to make a sound judgment as to how good an idea this is given the specific circumstances they face. If the guy is 120 lbs. bigger and carrying a Gattling gun like an umbrella, maybe it’s best to just phone that one in. But anyone who decides to make the arrest anyway, and succeeds, might as well have the law on their side.

Stranger were Mr. Gottardi’s comments how the new law might encourage reckless behaviour by security guards. “We’re also concerned that the changes will encourage unjustified arrests by private security personnel, who are not subject to public oversight in the same way that police agencies are,” he testified. “Such personnel often lack the necessary range of equipment or adequate training to safely and lawfully make arrests in a manner proportionate to the circumstances.”

OK. But the thing is … private security guards aren’t given any special powers under the current or proposed laws. The self-defence and citizen’s arrest powers are available to, and I’m quoting from Section 25 the Criminal Code here, anyone who legally qualifies “as a private person.” So, literally everyone. Any risks incurred by security guards are also incurred by you or I, and even though your average mall cop may not have the same training as a police officer, they have infinitely more training than any random citizen who stumbles onto a crime while taking a walk.

Liberal MP Irwin Cotler, a member of the committee, raised this issue. “When a private citizen chooses to effect an arrest without a warrant [they] run the risk … that the arrest may be determined to be a wrongful arrest. [The] person can be sued for damages for false imprisonment. If the person is sued for damages by reason of false imprisonment, he or she can raise the defence of having believed, on reasonable grounds, that the accused committed a criminal offence. In such a proceeding, it is the citizen who has the burden of proof to demonstrate that his or her belief was reasonable.”

Mr. Gottardi granted that point, agreeing that while the law may not put private security forces at greater legal risk, it may encourage private citizens to act more rashly, if they believe the law now enables them to arrest without fear of consequences.

He’s right. While having the right to make a citizen’s arrest is a fundamental part of our system of justice, which must recognize that the police are merely entrusted with the citizen’s basic duty to maintain law and order, the laws must be clear. The government has already taken the correct step of simplifying the law so that the citizen has some chance of interpreting it for themselves, but the onus for education and understanding must fall on the citizen who may make a citizen’s arrest. The government has already done their bit by improving the law. It’s up to the rest of us to understand it before we invoke it.

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